Is Creative Commons Good for Copyright?

One of the beauties and frustrations of dealing with issues online is the immediate feedback loop and the possibility that such a loop amounts to little more than people talking at each other, rather than with each other. We experienced this last week, when we posted the following thoughts to our Twitter account (@copycense):

Empirical question: how much is it worth in publicity, goodwill for creator to use Creative Commons license vs. copyright registration?

Empirical question: How many creators involved in the arts actually take the time to learn copyright basics? How do they do it?

The subtext of all this, of course, is “Why is this copyright stuff interfering with what I want to do?” In this vein, we continue to find amusing and interesting the how selective concern about copyright clearance, remixing, and related issues can be. It’s as if there are certain artists and works for whom copyright issues are real and significant, but other artists and works for whom the same issues either are not real, or unworthy of discussion. But we’ve already addressed this issue.

Typically, we use Copycense’s Twitter account as a news feed: it is quick, concise, and serves that purpose well. Occasionally, we post questions or thoughts to the feed, but usually expand on such questions or thoughts by writing on Copycense’s FriendFeed account. Regretfully, we did not do so with any of the four questions mentioned above.

A number of interesting responses ensued. Robert Richards of the Legal Informatics Blog (@richards1000) questioned the preemption responses we gave, in which we attempted to explain our theory that license contracts — and not copyright — may be the dominant legal regime in a digital information ecosystem. Then, a representative from Free Government Information (@freegovinfo) questioned our assertion that a Creative Commons license is an alternative to copyright; he opined CC works “on top of copyright.”

Mind you, all this dialogue was occurring as each of us were posting separate items on wholly different issues on our respective Twitter accounts. Given the way Twitter works, it is difficult to reconstruct the exact timeline of the posts, which would help the contextual understanding.

Instead of continuing to debate relatively complex ideas within the vacuum of 140-character limited posts, we have decided to address several of these issues here in a more expansive manner. Thus, this article will discuss preemption in copyright law, and why we feel that concept establishes license contracts as the dominant legal regime in digital and online software and services. We also will respond to our own aforementioned questions about Creative Commons licenses, and their role within the legal sector of the digital information ecosystem.

Preemption, Contracts, Licenses & the Consumers’ Choice

We have written before on the preemption issue (here and here), particularly as it applies to the limitations that most often apply to librarians and information professionals (Sections 110, 109, 108, and 107 of the 1976 Act). [Editor’s Note: The link to the second part of this two-part post goes to our backup site on WordPress.com because the original posting on the main Copycense site is broken.]

Preemption is a funky but important concept that simultaneously cuts across the Constitution’s Supremacy Clause in Article VI; Section 301 of the 1976 Act; and a raft of cases beginning with Judge Easterbrook’s 1996 opinion in ProCD v. Zeidenberg, 86 F.3d 1447. The preemption issue arises when authors’ or users’ copyright rights appear to be either enlarged or reduced by contract (such as in the instant example of a publisher’s contract to publish a journal article).

As to the general question whether contracts may deal with copyrighted material, the answer is obviously yes: former New York Law School professor Edward Samuels says in his wonderful book The Illustrated Story of Copyright [site] that the purpose of copyright essentially is to license one or more of the exclusive rights for economic gain. The preemption challenges are more likely to relate to the attempted contractual extension of copyright rights beyond those granted by the Copyright Act, or the reduction of the rights or copyright exceptions that users have traditionally enjoyed apart from contract. Most of ProCD‘s progeny (which extends to several federal circuits) conclude that as long as the terms of the contract (which are written under state law) do not occupy the same area as that reserved to copyright law (which is federal law), then the terms of the contract under state law will be valid and binding. This principle validates all manner of license contracts, including clickwrap licenses, terms of service, and even privacy policies.

Therefore, our understanding of this issue is that once a contract is in place, the terms and conditions of the contract prevail over federal copyright law because a contract is considered to be a private bargain between private actors, whom are presumed to have equal bargaining power to negotiate the terms and conditions of the contract. (We assume the contract is otherwise valid under applicable state law.)

ProCD, a 7th Circuit case, often is cited as the prevailing doctrine in this area, but our teaching notes (for our private and iSchool seminars) indicate that the Third and Fifth Circuits hold differently. Typically, this is the sort of split that begs for a Supreme Court ruling; we suppose that case is coming soon to a theater near you, although apparently not in the 2009-2010 term (American Bar Association, SCOTUSWiki). We are not alone in presuming the preeminence of the ProCD doctrine: some feel it may extend to the patent field as well. To be fair, though, others question whether the ProCD preemption doctrine has as much teeth as many give it, arguing that the nature of the enforcement makes a significant difference. This is a concept that should be explored further, just not in this article.

If we use ProCD as the prevailing doctrine, however, then one could question whether any copyright exceptions are preserved in an information landscape awash with contracts that governs access to digital information and services. Therefore, it is reasonable to conclude that the contract — and not copyright — is the dominant legal construct that governs access to and use of digital information. Additionally, it is reasonable to conclude that copyright’s preemption doctrine sets up an interesting choice for consumers of digital information: your transaction can be governed by federal copyright law, or by state contract law (per the license agreement), but not both.

(Copyright owners, of course, may not be in a situation where they would need to make this choice. On one hand, copyright owners initially have access to both sides of the equation because copyright ownership under of one or more of the exclusive rights under federal law is a prerequisite to licensing such rights for economic gain under state contract law. On the other hand, according to the ProCD doctrine, once the copyright owner creates and enforces the license, that bargain is managed exclusively between the contract parties, and under state law. The distinction is subtle, but significant.)

This choice affects consumers in a very real and tangible way: if a consumer’s bargain moves outside the realm of copyright and into state contract law, then it seems the only way to preserve any copyright exceptions — including fair use under Section 107 — is to negotiate such exceptions back into the terms and conditions of the contract. That, however, is virtually impossible given our current model of e-commerce and the nature of unilateral contracts.

(By the way, federal courts consistently have rejected the argument that such agreements are not contracts because they lack of formalities [such as mutual agreement] or are against public policy [such as the policy against adhesion contracts]. The most recent, high-profile judicial rejection of this argument came in the iParadigms/Turnitin case.)

Even if one does not want to consider the ProCD doctrine as one that elevates license contracts over copyright, these contracts still remain a critically important of our contemporary digital information ecosystem. This raises the specter of Creative Commons and its license contracts as a reasonable (rather than restrictive) way to manage a copyright owner’s exclusive rights.

Creative Commons Licenses As Contracts

We have found Creative Commons’ growth and acceptance an interesting case study. According to its Wikipedia entry, Creative Commons (CC) has “generat[ed] interest in the issue of intellectual property and contributing to the re-thinking of the role of the ‘commons’ in the ‘information age'” and “has provided ‘institutional, practical and legal support for individuals and groups wishing to experiment and communicate with culture more freely.'”

But if one gets down to brass tacks, what is Creative Commons? To the extent that Creative Commons creates contracts for creators of fixed works in a tangible medium of expression (i.e. copyright owners), we contend it is a copyright alternative, in the way that a state-based license contract serves as an alternative protective regime to federal copyright law per the preemption doctrine.

Interestingly, Creative Commons resists the “copyright alternative” label, claiming that its licenses “work alongside copyright, so you can modify your copyright terms to best suit your needs.” (At a minimum, this statement suggests that a basic understanding of copyright is a prerequisite to a basic understanding of Creative Commons licenses.) That may be true as it relates to one half of the copyright-licensing distinction, namely the prerequisite that only a copyright owner (or his authorized representative) may license one or more of the exclusive rights.

But what about the second, equally important half of that distinction, namely the ProCD theory that once the contractual licensing relationship is in place, it is that state-based, contractual association between the parties that governs the transaction instead of federal copyright law? Here, Creative Commons licenses are silent. If you look at the legal code for the CC licenses, they conspicuously omit a jurisdiction or venue clause. Whether or not the CC licenses would be valid under a specific state’s contract law as they are written seems to be an open question, one which CC itself tacitly acknowledges, since each license opens with the following language:

TO THE EXTENT THIS LICENSE MAY BE CONSIDERED TO BE A CONTRACT, THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS. (Emphasis added.)

Contrast, for example, Google’s Terms of Service, a license contract for that company’s services that fixes contract jurisdiction in California. Again, the ProCD theory seems to suggest that this second half of the equation moves the bargain into contract territory, leaving behind copyright. In other words, from the end user’s perspective, one can have a copyright relationship with the copyright owner or a contractual relationship with the copyright owner, but not both. Therefore, it stands to reason that if the choice of relationship is contract, the consumer has excluded the copyright relationship, thereby making the CC license a copyright alternative from the end user’s perspective.

To us, then, the natural next question is whether the move from copyright to contract ultimately is widely beneficial, even under a CC license scheme. We don’t think so.

Is Creative Commons Good for Copyright?

When CC founding board member Lawrence Lessigannounced in 2007 he was retiring from the intellectual property debate to focus on ethics, we wrote the “issues [related to possible strategic errors in the Eldred v. Ashcroft case] are minor compared with the good Lessig has done and the enormous effort he has spent in trying to get it right and make things equitable. Lessig has put his energy and his money where his mouth has been, and right or wrong, we respect and thank him for that.”

But we also wrote in the same post “we’re a bit skeptical of the Creative Commons initiative because it moves copyright issues into the realm of contract law. … Instead, we think copyright should remain firmly a federal public policy debate.”

At the time, it would have been unconscionable to imagine copyright becoming a national policy issue in any country on the planet. Yet now, Canada is firmly entrenched in this debate, with Canadian citizens seeming to have as much voice in the process as lobbyists. Since organizing a citizens’ revolt in December 2007on Facebook against new, restrictive Canadian copyright legislation, University of Ottawa law professor Michael Geist has helped actualize the virtually unthinkable: make copyright law a citizens’ issue. The connection between copyright and citizenship in a digital ecosystem hasbeenour focus in this space for at least a year, and we applaud Geist and the Canadian citizenry for addressing these crucial issues.

But now that we have an example that citizen engagement in copyright issues is possible, it is appropriate to address again the issues about Creative Commons we first raised in 2007. Thus, our fourth and final aforementioned Twitter post becomes relevant: “Would [the] energy [put] behind CC be applied better to calibrating U.S. Copyright Act of 1976 to be more neutral to citizen creators? (See Canada)” This question is particularly relevant for U.S. citizens because of the ProCD doctrine, the doctrine’s implication that copyright owners are the sole arbiters of acceptable use of copyrighted works, and the doctrine’s suggestion that the parameters of such use are governed by the “four corners” of a contract that copyright owners alone have drafted.

We conclude now, as we did in 2007, that the continued use and prominence of Creative Commons licenses actually obscures the real copyright issues we face in this country, and keeps Americans from settling on the proper parameters of digital information use, access, retrieval and preservation in the 21st century. It is too easy for a creator to slap a CC license on a copyrighted work, promote one’s apparent knowledge of (and sensitivity to) copyright issues through a CC badge, and feel good about oneself, almost like the purchase of hybrid vehicle becomes one’s outward signal to society that its owner is dedicated to stopping global warming.

Indeed, there seems to be a whole aura attached to using a CC license — or perhaps more specifically, slapping that CC badge on a copyright-protected work — because it seems to signal that the person using the license is thinking progressively about intellectual property, information policy, and related issues. Although this, too, is an issue worthy of empirical examination (consistent with our first empirical question, above, about CC’s publicity value), we question whether Nina Paley’s Sita Sings … plight would have been elevated to cause célèbre status if she hadn’t adopted the CC license scheme and, by extension, the publicity machine that is attached to it.

But we believe the real question to be asked is how we can calibrate copyright law to make it equally usable by, and effective for, all Americans. To this end, we believe the use of CC licenses actually avoids the question of what U.S. copyright should be in the 21st century, and how the law should best serve its citizens, who now are as likely to be creators of copyrighted works as your average conglomerate record label. This avoidance is particularly problematic given the prominence and use of CC licenses; the organization’s position — real or perceived — as the antidote to a broken copyright system; and the very real possibility that few who use the licenses really know what they mean.

While we’re asking empirical questions, here’s another: what percentage of CC license users have read the “legal code” to CC’s licenses? If the typical CC user understands that language, then he or she can read and understand the Copyright Act of 1976. If the typical CC does not understand the legal code that supports CC’s licenses, however, then he is using a legal instrument with little understanding of what that instrument does and how it affects the balance of rights between the creator and the user. That user certainly will not be sensitive to the underlying policy ramifications of the ProCD theory, which (along with the lack of copyright registration) may be the issue that most diminishes the utility and effectiveness of copyright law to and for the average American citizen.

Arguably, the Copyright Act of 1976 fails to work for corporate owners of large copyright portfolios, but it cannot be reasonably debated that copyright law absolutely fails at serving the contemporary information use and creation requirements of the average American citizen. With copyright, what has been good for the conglomerate no longer is what serves the citizen, because the average American now has a clear vested stake in the nation’s information policy. As Canada is doing now, the U.S. needs to have deep, complicated, and perhaps even painful conversations about information policy; the history, purpose, uses and scope of copyright law and policy in our digital information ecosystem; and the reform that needs to happen in both areas.

We do not believe the Creative Commons license scheme fosters that conversation. Instead, we believe the scheme muzzles this conversation by promoting a contractual bargain in lieu of balanced and calibrated legislation and policy. We hope that in the future, Creative Commons will put more of its considerable intellectual and economic resources toward resolving the problems with copyright law instead of promoting contractual workarounds. In the best case scenario, with a balanced and effective law that serves citizens and corporate owners equally well, a Creative Commons license is unnecessary. This should be the goal.